Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

SCOTUS for law students (sponsored by Bloomberg Law): The Court’s shrinking docket

Posted Wed, September 26th, 2012 11:37 am by Stephen Wermiel

The Supreme Court is shrinking. Not the building or the number of Justices. No, the Court’s docket is declining, both the number of petitions filed and the number of cases decided.

This is not a new phenomenon, but a pattern that may have started twenty-five years ago is continuing. The pace of granting cases for the new Term that officially launches on October 1 has been very slow so far, although – as it often does as it prepares to begin a new Term – the Court did grant six additional new cases yesterday morning.

Despite the prolonged trend, no one seems to know exactly why the docket is shrinking, although theories abound to explain the decline.

Here are some parameters to consider: in the Court’s most recent Term, which ran from October 2011 through June 2012, the Court issued sixty-four full, signed opinions after briefing and oral argument, the smallest number in at least a half-century and maybe longer. The total number of petitions filed in the Court has also declined, dropping by 145 last Term from the previous year and 447 from two Terms ago.

This trend is important for students in constitutional law, Supreme Court seminars, and other courses because it helps to illuminate the role that the Court plays in today’s society. It is fair game to examine whether a Court that decides substantially fewer cases is serving the needs of the judicial system for final resolution of important legal issues.

The Justices have almost complete discretion over their own docket, which consists primarily of petitions for writs of certiorari, a Latin term meaning “to make certain.” Last Term there were 7712 petitions filed in the Court. Under the Court’s procedures, these petitions may be divided into two groups: the paid cases, for which the petitioner pays a $300 docketing fee and files forty copies of a petition that has been printed and bound in the special format required by the Court (at an additional cost that usually reaches at least a thousand dollars, and often more); and pauper cases, the shorthand for the Latin description in forma pauperis, in which the fee is waived for individuals who cannot afford it and – in the case of prison inmates – only one copy of the petition need be filed.

Last Term, there were 1552 paid petitions filed, down slightly from 1558 the year before, 1583 two years ago, and 1596 three years ago. There were 6160 new pauper cases filed last Term, filed mostly by prisoners; these declined from 6298 the year before and 6576 two years ago, although the number was an increase from 6142 three years ago.

Typically, the Justices grant review in very few pauper cases, maybe six or eight in a Term, representing little more than one-tenth of one percent of the petitions filed. The rate of granting paid cases hovers somewhere between three and four percent.

But it is the Court’s full-dress decisions that show the most striking decline. While the Court decides a handful of cases each Term in unsigned opinions for the Court, called per curiam decisions, the numbers I am using here are for the cases in which the Court grants review, orders full briefing and oral argument on the merits, and then issues an opinion signed by the Justices.

In the mid-1980’s, the Justices were issuing one-hundred-fifty signed opinions in argued cases each Term. A decade later, that number had declined to eighty in the Term that began in October 1996, and by the start of the Term in October 2000, the number had fallen into the seventies. In the three years preceding the last Court Term, the number of signed opinions remained there: seventy-five in the Term that began in October 2010, seventy-three for the Term that started in October 2009, and seventy-four for the Term that got underway in October 2008. But sixty-four last Term?

There is no single explanation for the shrinking docket. Commentators on the Court have speculated about reasons, law schools have held conferences on the topic, and academic studies are plentiful.

Let’s start with the Justices, themselves. Those that have discussed the issue publicly or privately have suggested that there is no profound explanation involving a concerted effort by the Court to pull back on the volume of decisions. Rather, the Justices tend to believe that there is simply not a pool of compelling cases that they are missing or declining to decide.

Consider the views of Chief Justice John Roberts. During his confirmation hearing in 2005, he suggested that the Court could probably be deciding more cases and providing more guidance at the top of the judicial system. But by 2007, the Chief Justice told an audience that the Court’s choices were limited by the pool of available petitions.

What are some of the factors commentators have identified as contributing to the shrinking docket?

One frequent explanation is that Congress has been passing fewer new, major laws. Less action in Congress means fewer new regulations by federal agencies and less litigation over those new policies.

Of course, the litigation over the Affordable Care Act, leading to the ruling in June upholding the individual mandate, seems like an exception to this theory. But in the end, although the Court spent three days hearing arguments in the health care appeals, the Justices issued only a single decision (which accounts partly, although not fully, for the unusually low number of decisions last Term).

It may also be the case that some litigation over major new laws is either slow to reach the Supreme Court or never gets there at all. The Court has had little contact with the No Child Left Behind Act, the broad education reform that became law in 2002. Although President Obama signed the Dodd-Frank financial regulation law more than two years ago, litigation over the broad reforms is only beginning to heat up.

Another frequent explanation is that the federal government is appealing fewer cases to the Supreme Court. The federal government’s docket, which is handled by the Solicitor General in the Department of Justice, is significant because the Court grants the government’s appeals at a higher rate than other petitioners.

It is clear that the Solicitor General is appealing fewer cases to the Supreme Court. This may be because the government is losing fewer cases in the lower courts than it once did, and it may also be the result of selective judgment by the Justice Department about what cases to take up.

Still another theory is that when the Court is closely divided ideologically, Justices may vote to hear fewer cases. Here, the rationale is that neither the liberal nor the conservative wing of the Court wants to take cases that they may lose. The Court operate under the “rule of four,” meaning that only four of nine votes are required to grant a case. But sometimes, while there may be four votes, the Justices may refrain if they think they will not find a fifth.

There was an example, of sorts, in June when the Court, without full briefing and argument, issued an unsigned decision overturning a Montana Supreme Court campaign finance ruling. It appeared that four Justices – Ginsburg, Breyer, Sotomayor, and Kagan – would have been happy to grant the petition for certiorari and to schedule the case for argument to reconsider the Court’s 2010 ruling in Citizens United v. Federal Election Commission. But because there was not a likely fifth vote to reconsider Citizens United, the four Justices did not press the case for the Court to hear the petition and dissented, instead, from the reversal of the Montana ruling.

There are still other explanations that are possible. Some observers say the processing of the petitions by the law clerks to the Justices leads to extra caution and fewer granted cases. Eight of the nine Justices – all but Justice Alito – share a pool system in which a petition is read and summarized by one of the four law clerks for one of the eight Justices who participate in the pool; the “pool memo” that the law clerk writes is shared with the other Justices. The memo makes a recommendation on whether the Court should grant or deny review to a case. The theory is that the law clerks play it safe, only recommending grants when there is a clear disagreement over a matter of federal law among the federal appeals courts. Moreover, even when there is a real “split” among the circuits, the law clerks will still often recommend that review be denied to avoid the potential embarrassment they fear would ensue if cert. is granted but the case is later found to be somehow flawed: many clerks, after they leave the Court, will declare quite proudly that they never recommended a single grant in their entire year at the Court.

Another explanation, offered in a study by Minnesota Supreme Court Justice David Stras when he was a professor at the University of Minnesota Law School, was simply that as the Justices who were accustomed to deciding one-hundred-fifty cases per Term retired, they were replaced by Justices who voted to grant petitions for certiorari less frequently.

In the end, it is likely that no single explanation can account for what remains a clear pattern: the shrinking docket of the Supreme Court.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]